Unfair dismissal is a statutory claim based on the reason for the dismissal and the reasonableness of the employer’s actions.
What are fair grounds for dismissal?
There are five potentially fair grounds for dismissal:-
Employee’s conduct (e.g. Theft)
Employee’s capability or lack qualification to do the work (e.g. inability to do the work)
Employee is redundant
Employee could not continue his work without contravening some statutory provision (e.g. a person employed as a drive who has lost their licence)
Some other substantial reason sufficient to justify dismissal of employee holding the position of the dismissed employee
What is procedural unfairness?
Procedural unfairness is where an employer has failed to act reasonably in coming to the decision to dismiss the employee.
In deciding in dismiss an employee, the employers action must be reasonable. In deciding what is reasonable, the tribunal will consider the size & administration of the employer, Equity and the substantial merits. The tribunal will also consider the range of reasonable responses available to the employer.
An employer should also follow ACAS guidelines, in that they should properly investigate the matter, inform the employee of the investigation and hold a meeting. The employer should inform the employee of the decision and any grounds of appeal.
What is automatic unfair dismissal?
Automatic unfair dismissal arises when an employee is dismissed for any of the following reasons:-
Trade Union reasons, including following industrial action
For asserting statutory rights
Asserting Health and Safety
On transfer of a business
Pregnancy or maternity related
Is my employer obliged to disclose the reason for dismissal?
Yes, an employer is obliged to disclose the reason for dismissal. You may request a written statement of the reason for dismissal. Employees who are pregnant or on maternity leave are entitled to a written statement without having to ask.
Who can claim unfair dismissal?
To be eligible to make a claim for unfair dismissal you must:-
Be an employee. An employee must have performed your contract personally, there must be a mutuality of obligations between the employer and employee and the employee must have agreed to be under the control of employer.
Have been dismissed. Dismissal can be actual, termination of fixed term contract, termination of contract for completion of specific task or constructive dismissal.
Had the requisite period of employment prior to dismissal. Prior to 6 April 2012 an employee must have completed one year continuous service by effective date of termination. Following 6 April 2012, the qualifying period for unfair dismissal increased to two years continuous employment.
Not be within an excluded class. Excluded class is made up of armed forces, police offer and share fishermen.
How do you claim unfair dismissal?
To make a claim for unfair dismissal, you must lodge an ET1 with the Employment Tribunal.
At tribunal an employee has to prove that they are eligible to claim and that they have been dismissed. It is for the employer to prove the reason for the dismissal and for the tribunal to decide whether the employer acted reasonably in dismissing the employee.
What does the employment tribunal do?
Employment Tribunal must decide whether the employer acted reasonably in dismissing the employee.
Are there any time limits for unfair dismissal claims?
A claim for Unfair Dismissal must be lodged with the Employment Tribunal 3 months (less one day) from the date of dismissal.
If terminated by way of notice the date of dismissal is the date that the notice expires, if terminated without notice the date of termination is the date it actually takes effect and when working under a fixed-term or specific task contract then the date of dismissal is the date the contract expires.
If the employment tribunal rules in my favour, can I get my old job back?
Should the tribunal rule in your favour a remedy open to the tribunal is reinstatement and reengagement. However, the usual remedy is compensation. Less than 0.1% of orders in 2010/11 were for reinstatement or reengagement.
What about compensation for unfair dismissal?
Compensation is the usual remedy for unfair dismissal. The award for compensation is made up of the basic award and a compensatory award.
The basic award multiplies an age factor by the number of year’s service and your net weekly gross salary (current maximum of £430).
The compensatory award is the amount that the tribunal considers just and fair having regard to the loss sustained by the employee. The main heads of loss incorporate the immediate loss of net earnings, future loss of net earnings, loss of pension rights and fringe benefits, loss of statutory rights and expenses in looking for work.
If you have other question about unfair dismissal use Ask EAD – ask an employment solicitor a legal question and get free legal advice.
Extremely happy with the outcome of my Personal Injury Claim and can only thank Paul McCarthy and his team at EAD Solicitors and also Tim Trotman my barrister arranged by EAD, for all their work and efforts on my behalf. As such I would highly recommend EAD to anyone in need of their service. Once again thanks to all involved.
Brodie Martin, Merseyside
Excellent, very professional, approachable when I needed advice. I would just like to say thank you to your staff.